DENIC, the Registry responsible for running the .DE namespace, recently announced that 100,000 .DE domain names have been registered using Domain Name System Security Extension (DNSSEC).

DENIC introduced DNSSEC as an option for .DE domain names in 2011. According to the Registry, there has been steady growth in the number of .DE domain names being registered with this increased security since 2015.

DNSSEC was designed and implemented as a response to the inherent security vulnerabilities in the way that the Domain Name System (DNS) operates. Due to these inherent vulnerabilities, it is possible to divert Internet users away from their intended website destinations and to redirect them to third-party websites without their knowledge. This can result in the dissemination of computer viruses, malware and even theft of sensitive financial and personal data.

DNSSEC seeks to mitigate this situation by introducing additional security at the level of the domain name servers, which ensures that Internet users are alerted to any possible re-direction to a third-party website that is not their intended destination. DENIC introduced this additional layer of security to protect websites associated with .DE domain names from online attacks. These online attacks can take the form of ‘DNS spoofing’ (where a hacker gains access to the domain name servers on which a domain name is hosted in order to redirect visitors to a website of the hacker’s choosing) or ‘DNS hijacking’ (where a hacker can modify the domain name’s server data to gain control of it).

Online attacks can also be used to try and obtain users’ personal information, such as bank details. This type of fraudulent activity is not only a serious threat to users, but can also have a detrimental effect on the domain name holder and their online business. Such fraudulent activity can result in a loss of revenue as well as a loss in consumer confidence in relation to the online business in question. Thus, DNSSEC aims to build a ‘chain of trust’ between users and the websites they visit.

This post is selected from our Anchovy News publication: Anchovy® is our comprehensive and centralised online brand protection service for global domain name strategy, including new gTLDs together with portfolio management and global enforcement using a unique and exclusive online platform developed in-house. For more information please contact us at anchovynews@hoganlovells.com

This week, the European Court of Justice (CJEU) ruled that the taste of cheese does not enjoy any copyright protection (C-310/17). Although this preliminary ruling procedure from the Netherlands may sound bizarre, the effects of the decision should not be underestimated: for the first time, the CJEU had to make a direct statement on the requirements for a work to be protected under copyright. It is therefore to be expected that the decision in the Levola Hengelo case will be frequently cited in future proceedings on questions when something qualifies as a copyright protected work.

Background

The case is easily summarized: cheese producer Levola Hengelo claims that its competitor Smilde copied the taste of the specially produced “Heksnkaas” (a cheese spread) and considers this as a copyright infringement. The cheese producer’s claim was rejected by the Rechtbank Gelderland, the court in first instance. After filing the appeal, the Gerechtshof Arnhem-Leeuwarden now has to decide on the lawsuit. But is there any copyright protection for the taste of “Heksnkaas“? In order to answer this question, the court turned to the CJEU, which has so far essentially remained silent on the subject of the protectability of copyright protected works.

In his Opinion published on 25 July 2018, Advocate General Wathelet argued in detail against the possibility of protecting the taste of cheese. Referring to international copyright treaties and drawing a parallel to the Sieckmann case (C-273/00; on the protectability of smells under trademark law), the Advocate General came to the conclusion that works protected by copyright must be recognizable with sufficient accuracy and objectivity – which, however, must be denied in the case of the taste of cheese. Continue Reading

As of this writing, the United States recently halted trade negotiations with China particularly as related to trade tariffs for alleged “unfair trade practices” under Section 301. Though it may be popular to label the Trump administration’s latest tariffs on China as part of an ongoing “trade war”, the response elides a significant point: that imposing tariffs may be one of the only “strong ways” to force China to stop what the U.S. President alleges are “unfair trade practices” by improperly taking valuable U.S. intellectual property (IP).

Much of these trade tariff enforcement actions by the U.S. President are in efforts to force China to implement more fair laws and procedures for U.S. entities operating within China’s borders and to reduce improper actions by China individuals or entities within the U.S. borders.

The “unfair trade practices” by China with respect to alleged intellectual property theft are estimated to cost the U.S. between US$22.5 and US$60 billion dollars a year — whether it is a Beijing-based wind turbine company stealing trade secrets from a Massachusetts company or a string of large U.S. chemical companies investing in China with the risk of losing their IP rights as part of current Chinese law.

Of late, China has given exceptions to certain industries in areas where it believes it lags behind — electric vehicles or downstream petrochemical companies, for instance — but energy companies investing in China need to be up to date on these exceptions. There also are ways in which organizations can structure investments so as to reduce the risk of losing significant IP rights to China. For one, when negotiating joint ventures (JV), companies need to consider terminating the JV when it wants to withdraw and thereby terminating any associated IP license associated with the venture — otherwise, Chinese law dictates that the JV may be able to continue to be able to use the IP brought in during the JV formation. Continue Reading

Last night the UK Cabinet backed the Withdrawal Agreement and Political Declaration on the Future Relationship agreed between the respective negotiating teams of the UK Government and the EU Commission. The Withdrawal Agreement covers the protection of existing unitary intellectual property rights in Articles 54 to 61. The detail has not changed in any material way from the draft Withdrawal Agreement published in February 2018. In short, existing unitary IPR (i.e. registered EU trade marks, registered community designs, unregistered community designs and also protected EU geographical indications) is continued automatically with equivalent separate UK protection granted to unitary IPR rights holders at no cost to them. For our comments on the detail of Articles 54 to 60 (previously Articles 50 to 57) read our earlier blog here. There are further hurdles to overcome before the Withdrawal Agreement is signed however. The EU27 leaders must sign off on the Withdrawal Agreement before the draft is presented to UK Parliament for a “meaningful vote” in early December. The risk of the UK exiting with “no deal” therefore still remains. For more information read the blog on what happens now on our Brexit Hub.

The key documents, including the Draft Withdrawal Agreement and Political Declaration can now be found here.

In this article, first published in the November edition of Intellectual Property Magazine, Stephen Bennett and Mary Foord-Weston examine how new therapies for cancer treatment are challenging patent law. The authors discuss protecting IP in individual medicine, defining the product, process claims, dosage regimen claims and what’s next for adoptice T cell therapies

With two products being recommended for marketing authorisations in the EU at the end of June, followed by one of the fastest funding approvals in the NHS’s history, adoptive T cell (“ATC”) therapies have hit the headlines in recent months. Frequently referred to as “game changers”, these new therapies promise to radically change cancer treatment and have already demonstrated the ability to produce durable remissions in patients whose disease has proved resistant to conventional treatment. IP practitioners working in the pharmaceutical sector can increasingly expect to encounter T cell therapies in the near future, as these treatments reach the market and competing companies jostle to position themselves as industry leaders.

The growing maze of overlapping patents, the prevalence of collaboration and licensing agreements and the ongoing involvement of academic institutions means that there is likely to be litigation in Europe in the coming years, as has already been the case in the USA [1].

We explore what makes T cell therapies different to previous cancer drugs and how the departure from small molecule pharmaceuticals towards cell-based therapies blurs the line between patient and medicine. This is likely to place pressures on the existing IP system as it struggles to cope with the pace of change in personalised medicines. Continue Reading

The .ME ccTLD was launched in 2008 and has proven quite popular since then. By 2010, over 320,000 .ME domain names had already been registered, which made it the fastest selling debut TLD. At the time of writing, according to DomainTools, the ccTLD counts over 892,500 registered domain names. The launch of .ME IDNs will undoubtedly raise this number.

This post is selected from our Anchovy News publication: Anchovy® is our comprehensive and centralised online brand protection service for global domain name strategy, including new gTLDs together with portfolio management and global enforcement using a unique and exclusive online platform developed in-house. For more information please contact us at anchovynews@hoganlovells.com

On 26 October 2018, the Standing Committee of China’s National People’s Congress (NPC) issued a Decision setting out the establishment of a new IP Court of Appeals at the national level within the Supreme People’s Court (SPC). This Decision will come into effect on 1 January 2019.

The Decision provides that the SPC will have appropriate jurisdiction to handle: (1) all appeals against first instance civil judgments in technology-related IP cases and (2) all appeals against administrative judgments issued by the Beijing IP Court pertaining to invention and utility model patent cases (i.e. appeals against the rulings of the Beijing IP Court regarding Patent Review Board decisions). Technology-related cases here are defined as cases regarding invention and utility model patents, new varieties of plants, layout designs of integrated circuits, technical trade secrets, computer software and anti-trust cases, and thus do not include cases involving design patents In other words, for patent cases and other cases involving complex technology, the appellant may bypass the higher/highest court at the provincial level altogether and appeal the intermediate or IP court’s ruling directly to the SPC. This is a groundbreaking event for IP in China as this NPC Decision essentially establishes a specialized IP appellate court (within the SPC) to specifically hear complex patent cases- which is akin to the role of the Court of Appeals for the Federal Circuit (“CAFC”) in the United States. Please find below an updated high-level view of the appeals process for Chinese IP matters (click to enlarge):

Even though the creation of a national level IP centric Court of Appeals has been a topic of great interest and discussion in China for quite some time, some aspects of the new IP Appellate Court still come as a surprise for most practitioners. Continue Reading

An ever-increasing variety of companies are incorporating machine learning into their products and services. Machine learning provides the ability to quickly and accurately perform, in parallel, a large number of well-defined tasks. The accuracy will improve over time as additional data is obtained and the machine learning model continues to “learn”. Many companies, however, are struggling with the best way to protect machine learning and artificial intelligence innovation.

In machine learning, statistical models (ie, neural networks) are trained using a set of classified data. Once trained, the model can analyse unclassified data, such as images representing unidentified objects, and classify or generate observations for that data. A significant issue slowing widespread adoption of machine learning is the inability to access or determine the internal relationships or mechanisms by which machine learning generates these observations. Information about the initial configuration and training might be known, but trained models cannot “explain” in easily understandable terms how specific decisions were made.

This interview with Peter Watts takes a look into how intense innovation, diverse deal structures, and political protectionism are changing the face of M&A in the technology, media, and telecommunications space. Peter focusses on the following questions:

What are the main drivers for cross-border deals at the moment?

What do you think has been the most interesting deal of Q3, and why?

With innovation as a major driver of deals, do you feel that M&A is the best way for companies to nurture that kind of innovative spirit?

Does the drive for innovation differ across other sub-sectors?

What are the major challenges to M&A in the sector?

As we move towards 2019, what advice do you have for companies looking to do deals in the sector?

Can the Federal Republic of Germany invoke a copyright on military status reports? This is the key question currently before the European Court of Justice (CJEU) (Case Ref. C-469/17). But before the Court submits a ruling on the case, presumably in early spring 2019, Advocate General Maciej Szpunar published his Opinion on 25 October 2018. And his opinion is clear: The preliminary proceeding coming from Germany is already inadmissible and the German Federal Supreme Court (BGH) should refer the case back in order to clarify how and if copyright protection can be claimed. The Advocate General has significant doubts about this and asserts that a Member State could not justify applying copyright law on the ground of protecting freedom of expression and information in this particular situation.

Background

The so-called Afghanistan papers are at the center of the legal dispute. These include the weekly status reports prepared by soldiers on the deployment of the Bundeswehr (German Federal Armed Forces), especially in Afghanistan. Under the designation “Unterrichtung des Parlaments” (UdP; in English “information to the parliament”) they are forwarded to selected members of the parliament and are classified as the lowest of the four secret levels.

In 2012, the Funke Medien NRW GmbH, a media company which also operates the online presence of the newspaper Westdeutsche Allgemeine Zeitung (WAZ), applied unsuccessfully for access to the status reports since 2001. The reason for the rejection was security related. The WAZ nevertheless received the status reports via unknown channels and published them under the title Afghanistan Papers. The Federal Republic of Germany turned against the publication as the employer of the soldiers and sued Funke Medien NRW GmbH for injunctive relief due to an alleged copyright infringement on the status reports.

Both the Regional Court (Case Ref. 14 O 333/13) and the Higher Regional Court of Cologne (Case Ref. 6 U 5/15) concurred with the plaintiff’s view. Only the BGH had doubts and referred three questions to the CJEU to clarify the interplay of copyright law as well as freedom of information and freedom of the press within the framework of copyright limitations.

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